R (on the application of Patnaik) v Sunderland Teaching Primary Care Trust [2007] Unreported

A recent unreported case has put pressure on the NHS to explain precisely why it finds it so difficult to purchase care directly from people’s relatives, when the patient is entitled to continuing NHS health care funding, and needs it, in their parents’ or their own home.

The case was brought by the parents of a young woman with a serious heart condition and learning disabilities against their daughter’s PCT. The case was settled after a successful preliminary ‘permission’ stage of judicial review proceedings (and therefore did not create a binding precedent, in terms of what must happen in other cases) with the outcome that the NHS Trust agreed to pay the parents to continue to care for the woman at home.

If the woman had been social services’ responsibility, in terms of her profile of needs and her legal status, she might (If she had mental capacity) have been able to consent to Direct Payments, which would have enabled the parents to be paid for the personal care that was provided (as it is accepted that there was no other feasible way of caring for her). No CRB checks are necessary for a recipient of Direct Payments, and a Direct Payment funded worker does not have to register, as they are not employed or engaged by an agency or employment business, in that particular context.  No CSCI registration consequences flow either, because even the person managing a Direct Payment is merely helping a person to help him or herself spend their Direct Payment, once it has been consented to, in the first place. Employing a person to give oneself personal care has never been registrable.

In this case, the young woman’s parents were accepted by the PCT as the only people who could adequately look after her. The NHS has statutory power to purchase services from anyone it thinks fit and proper, and this is the legal power under which it contracts, regularly, with the private and voluntary sector. If it can find a person willing and able to do the job, it can employ that person or engage him or her (although the tax authorities apparently like to see personal care workers as essentially employed, rather than self-employed – the tasks involved, to their mind, being all about taking direction from an employer, rather than being in charge of deciding what needs to be done!). In the case under discussion, the parents were both engaged as individual contractors, rather than as an entity.

What if the relatives needed to employ others, to provide sufficient care?

Another case, Gunter, in 2005, illustrated that parents or other supporters could make themselves into a formal entity, and employ other people through an Independent User Trust.  Other schemes have involved the formation of a company limited by guarantee, which counts as a voluntary organisation, but no case has gone into the registration consequences that would then have to follow.

Registration consequences

In England, the arranging of, or the providing of personal care, by ‘an undertaking’, triggers registration as a domiciliary care agency under the Care Standards Act. There are similar rules covering the provision of nursing. These registration steps involve expense, a level of bureaucracy and the recruitment of only registered care workers for hands-on personal care tasks. The staff, in turn, have to do NVQs etc – so it is not a popular route to go down, even if a ‘third party’ or ‘indirect’ payment, as it is known in social care circles, under s29 and s30 of the National Assistance Act, has been embraced by the Local Authority, to enable the close family to be in charge of the care of someone too incapacitated to consent to a Direct Payment.

There are exceptions to the need to register, but it is not an exception that one is merely an individual providing care for a relative, unfortunately, nor that the services are being funded by the NHS. The word undertaking sometimes connotes a business or professional activity, but in this context, it is defined merely to include such activities, and the definition includes the activities of public bodies as well. Individuals can be undertakings, so any individual needs to satisfy him or herself that they are not in fact triggering registration by taking on care responsibilities.

Another exception to registration as a domiciliary care agency is that the undertaking concerned is an individual, but then there are some important conditions attaching to that concession. It cannot be an individual who is providing the care as the agent, partner or employee of anyone else, or, indeed, by employing anyone else. In any case where the NHS delegates its responsibilities to another person under contract, that other person will inevitably be seen as providing the services as an agent, so it is not thought that this exception to registration can apply. Parents who were spending their own money would not, it is thought, constitute an ‘undertaking’, just by buying care for a loved one – and would usually be buying care from an agency with registered staff, anyway – but parents acting as agents for the performance of NHS services, could be caught by the Act, it seems. Whether or not it was a Trust would appear to make no difference – it would still be a body of persons acting as the NHS’s agent…

Implications for those eligible for continuing NHS health care, or people enjoying shared packages of care where the PCT funds an ad hoc proportion?

Ben Hoare Bell LLP confirms that a further case involving the same issues has been commenced. It will be interesting to see whether it goes to a ruling, and whether the publicity about the issues in these cases might begin to make PCTs appreciate that they CAN in fact achieve the equivalent of direct payments for people’s carers – despite the government’s emphasis on the non-existence of NHS Direct Payments, in the research report ‘Your Health, Your Care, Your Say’, prepared to respond to its own White Paper. That is, assuming the registration consequences can be explained and accepted by the proposed service providers concerned.

Implications for the personalisation of social care services

It will also be interesting to see if CSCI takes on board the implications of this kind of commissioning for its regulatory responsibilities, at a time when the government’s agenda is very much in favour of people’s relatives (even the relatives of completely mentally incapacitated people) taking over the responsibility of the local social services authority, for care planning and commissioning.  Nowhere in the rhetoric that is currently fuelling nationwide interest in Personalisation, In Control, Individual Budgets or the extension of Direct Payments to those who are not able to consent, can any discussion of this inconvenient registration aspect of the legal framework be found – so it would hardly be an easy or popular nettle for CSCI to grasp.

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